New South Wales Supreme Court CITATION : Nye v State of New South Wales & ors [2002] NSWSC 1269 FILE NUMBER(S) : SC 21458/96 HEARING DATE(S) : 21/10/2002, 23/10/2002 JUDGMENT DATE : 1 November 2002 Garry Raymond Nye State of New South Wales Wayne Popplewell PARTIES : Wayne Desmond Gordon Peter James Hawley David John Barnett Director of Public Prosecutions JUDGMENT OF : O'Keefe J COUNSEL : Plaintiff: Mr B Donovan QC with Mr D Baran and Mr C Thompson Defendant: Mr I Temby QC with Mr P Lakatos SOLICITORS : Plaintiff: Miss E Faccin - Carol & O'Dea (Sydney) Defendant: Ms G Fuller - Crown Solicitor's Office (Sydney) CATCHWORDS : Evidence - Expert - Experience - Expert evidence - Expression of opinion by a senior detective in relation to investigative methods and quality of evidence - Royal Commission transcript - Business record - Evidence admitted LEGISLATION CITED : Evidence Act 1995: ss 69, 129, 135(a) Zanatta v McCleary (1976) 1 NSWLR 230 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 CASES CITED : Lockyer v The Queen (1996) 89 A Crim R 457 Trobridge v Hardy (1955) 94 CLR 147 Wilson v State of New South Wales (2001) 53 NSWLR 407 DECISION : The passages from the transcript of evidence objected to admitted . - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION O'Keefe J 1 November 2002 21458/96 Nye v State of New South Wales & ors JUDGMENT 1 CORAM: Senior Counsel for the plaintiff has pressed the tender of extracts from the transcript of the evidence given by Detective Inspector J F Wilson before the Royal Commission conducted by Wood J into the New South Wales Police Service. The relevant passages were given in evidence on 24 October 1996 and were as follows: "Q: A critical aspect police could check, would be, you would accept would you not, that if it was perfectly plain upon investigation that that storage unit never held any hash and couldn't have held such hash, there was a huge hole immediately in the case? A: Yes. Q: Similarly, if there were problems in its transportation back to Sydney, that is, if it was a critical aspect of Shakespeare's account and that the cannabis actually got back to Sydney and ended up in Thurgar's laundromat and then was pinched by him -- A: I am not aware of this, sir. Q: If that was the story, and yet upon investigation it proved absolutely impossible for Thurgar to – I'm sorry, for Shakespeare to have got that cannabis back to Sydney for all kinds of reasons, including the problems with transport, then that throws a huge hole again in his case? A: Yes. Q: And dealing with a simple matter such as the inability of this hash to have been held in storage in Queensland, immediately you have a problem? A: Yes, sir, I'd agree with that. Q: Isn't that the kind of thing that properly trained, dedicated investigators who had a true motive at heart would go and check before putting up the nonsense they put up in this particular case? A: I'd have to agree with that, sir, yes." (T 3327) 2 It has already been determined that the transcript of the evidence given by Detective Inspector Wilson is a business record for the purposes of s 69 of the Evidence Act 1995 (the Act), and that its reception into evidence is not precluded by s 69(3). Senior Counsel for the defendants has objected to the admission of the above passages on the basis that they fall within the ambit of the discretion to refuse admission conferred by s 135 of the Act. It was submitted that the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to the defendants and in any event might be misleading. 3 In support of this submission the following factors were relied upon: (i) The questions were asked by the Royal Commissioner, who had been the trial judge on the prosecution of the plaintiff for murder. The prudence, and even the propriety, of such a course was thus thrown into question (T 890). (ii) In essence the questions amounted to representations by the Royal Commissioner as to his opinion in relation to certain aspects of the investigation into the murder allegations against the plaintiff (T 890). A subsidiary submission in this regard was that the questions consisted of statements made out of court by a judge after the end of a trial over which he had presided and were thus inadmissible both because of s 129 of the Act and the general law as discussed in Zanatta v McCleary (1976) 1 NSWLR 230. (iii) The witness was "under extraordinary pressure" to give affirmative responses. (iv) The effect of the passages referred to above was to demonstrate that the answers were given by "a witness who has been pushed around considerably during the course of the testimony he gave". (T 891) (v) Some parts at least of the material do not involve any affirmative answer by the witness, and absent such affirmative answers, the questions cannot have probative value. The example of this relied upon was the question to which Detective Inspector Wilson answered "I am not aware of this, sir". (vi) The cumulative effect of the foregoing is that the evidence given by Detective Inspector Wilson was "so unreliable that … it has an unfairly prejudicial effect and would be excluded under s 135". (T 891) 4 In the course of his address in reply, Senior Counsel for the defendants also submitted that nothing had been led from Detective Inspector Wilson as to his actual experience and as a consequence his expertise is not clearly established. 5 The evidence in the matter to date establishes that Detective Inspector Wilson was the officer who was second in charge of the Major Crime Squad of the New South Wales Police Service. He was immediately under the command of Detective Superintendent Harding. During absences of his superior, he was in charge of the Major Crime Squad and played a not insignificant role in relation to the investigation of the murder of Roy Thurgar. His seniority and position, together with his involvement in the relevant investigation, in my opinion are sufficient to demonstrate that he has the specialised knowledge, training and experience that fit him to express an opinion in relation to investigative techniques, procedures, investigations themselves and their adequacy or otherwise. Furthermore, because of his involvement with the investigation and the nature of the assumptions put to him in various of the questions, his answers do not amount to speculation, or otherwise fall outside the field of his expertise. The opinions proffered by him were related to particular premises that were specific to the relevant investigation. As a consequence, both on the basis of his expertise and the ambit of the evidence given, I am satisfied that such evidence accords with the requirements for the admission of expert evidence detailed by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 739-745. 6 Whilst it is true that the questions the subject of objection were asked by the Royal Commissioner who had been the trial judge on the prosecution of the plaintiff for murder, this does not, in my opinion, call into question the prudence or propriety of such a course. The matters put to the witness were all in interrogative form. They did not amount to expressions of opinion by a judicial officer out of court in relation to his reasons or otherwise in relation to a matter which he had conducted as a judicial officer. They do not, in my opinion, fall within the excluding provisions of s 129 of the Act nor do they append the common law principles referred to in Zanatta v McCleary (supra). 7 To the extent that the witness agreed with the propositions involved in the questions asked of him, it is his adoption of the propositions that gives evidentiary value to them. Where the witness has not agreed to the propositions, or to any particular proposition, included in any of the questions objected to, then, without more, the substance of the questions would be not admissible. Thus, the question and answer: "Q: Similarly, if there were a problem in its (the drug's) transportation back to Sydney, that is, if it was a critical aspect of Shakespeare's account that the cannabis actually got back to Sydney and ended up in Thurgar's laundromat and then was pinched by him -- A: I am not aware of that, sir." would not be admissible if they stood alone and the propositions had not been adopted by the witness at some stage in the course of his evidence. However, in the question which follows the question and answer set out above, the Royal Commissioner asked a question, to which the witness replied in the affirmative. That question commenced with the words "If that was the story …". In order to understand the effect of the affirmative answer to the question which began in such manner, it is necessary to look at the preceding question, since that question sets out the assumptions which are included within the ambit of the words "If that was the story…" 8 The submissions that the witness was under "extraordinary pressure", and had "been pushed around considerably" are, in my opinion, colourful modes of suggesting that the circumstances of Detective Inspector Wilson's examination involved some tension. They did. Undoubtedly, he was being pressed in relation to his involvement in a major murder investigation which resulted in an acquittal and apparently some criticism of the police involved. However the rank and experience of Detective Inspector Wilson in my opinion mark him out as a witness who was well able to cope with giving evidence, with tense situations, and even with quite spirited cross-examination. Furthermore, the way in which he is recorded as having dealt with various questions asked in the course of his evidence - including those the subject of the present objection - does not suggest to me that he was less than adequate to the situation, that he was overborne, or that he was brow beaten in any way. He was an experienced officer well able to take care of his own interests, and in my opinion his evidence suggests that he did so. In addition, the formal setting of the questions and answers bespeaks a likely correctness of the answers given, thus tending to confer a not insignificant probative value on them. 9 The material which is pressed on behalf of the plaintiff involves expressions of opinion by a senior detective in relation to investigative methods, failures and inadequacies, and the quality of the material available to police who conducted the investigation into the murder of Roy Thurgar. Those expressions of opinion have probative value. The evidence is not misleading or confusing. It is in fact in my opinion, clear and concise. Furthermore although, like all evidence adduced by a plaintiff or prosecutor, it is directed to establishing a case against a defendant or defendants and in that sense may be regarded as prejudicial, that does not render the evidence inadmissible, as was pointed out by Hunt CJ at CL in Lockyer v The Queen (1996) 89 A Crim R 457. The evidence is not, in my opinion, unfairly prejudicial to the defendants in this case. 10 Direct evidence from an expert in investigations as to the adequacy or inadequacy of the relevant investigation may not be readily available to the plaintiff. The fact that it exists in written form in a business record, that it emanates from a senior officer involved at a command level in the relevant investigation and that it is not excluded by s 69(3) of the Act is a fortunate circumstance for the plaintiff in the present case. The way in which the plaintiff puts his case (Trobridge v Hardy (1955) 94 CLR 147) is dependant to a substantial extent, perhaps entirely, on inference. For the purposes of the present case, it would not be sufficient that the investigation was negligent. Negligence in an investigation or in the exercise of prosecutorial functions does not give rise to a cause of action (Wilson v State of New South Wales (2001) 53 NSWLR 407). More is required. Direct evidence in relation to the nature of the investigation, what might be regarded as deficiencies in such investigation, and what properly trained, dedicated investigators with a proper motive would do before proceeding with the prosecution is relevant to the issues in the present case. 11 The admission of the portions of the transcript of Detective Inspector Wilson's evidence referred to above would not preclude the calling of oral evidence from Detective Inspector Wilson in relation to the subject matter of the questions. Any claim to unfairness or that the witness had been overborne or that the answers given by him and recorded in his transcript did not truly reflect his views could thus be dealt with by direct evidence. Furthermore, the admission of the evidence given by Detective Inspector Wilson before the Royal Commission would not preclude the admission of evidence from an expert in investigations which asserted the adequacy of what had been done by the defendant police officers and their investigating team in relation to the murder of Roy Thurgar. 12 In summary, on its face the probative value of the evidence objected to is not slight. Its probative value is not insignificant, indeed, in the ultimate analysis, it could well be quite significant. Whether this is so or not will depend upon any other evidence that is given touching upon the subject matter in question. Furthermore, in my opinion there would not be any danger that such evidence might be unfairly prejudicial to the defendants or that it might be misleading or confusing. 13 For the foregoing reasons, I am of opinion that the passages objected to should be admitted. ********** Last Modified: 02/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.